United States District Court, W.D. Washington, Seattle
ORDER DENYING STIPULATED MOTION TO TRANSFER
L. ROBART UNITED STATES DISTRICT JUDGE
the court is the parties' stipulation and proposed order
to transfer venue to the United States District Court for the
Southern District of New York pursuant to 28 U.S.C. §
1404(a). (Stip. (Dkt. ## 9, 10).) The court has reviewed the
stipulation and the applicable law. Being fully advised, the
court DENIES the stipulation without prejudice to refiling in
a manner that complies with the requirements of 28 U.S.C.
the parties “stipulate and agree that this action
should be transferred . . . to the United States District
Court for the Southern District of New York, ” and
although Defendants agree “to accept service of process
in the Southern District of New York, ” Defendants do
not agree to waive “objections to lack of personal
jurisdiction.” (Stip. at 1.) Prior to 2012, 28 U.S.C.
§ 1404(a) allowed a district court to transfer an action
“to any other district or division where it might have
been brought.” See 28 U.S.C. § 1404(a)
(West 2011). Congress amended § 1404(a) in 2011 to state
that cases can be transferred not only to any other district
or division where the action “might have been brought,
” but also “to any district or division to which
all parties have consented.” See 28 U.S.C.
§ 1404(a); see Raisman v. U.S. Olympic Comm.,
No. 18-CV-02479-BLF, 2018 WL 6067254, at *4 (N.D. Cal. Nov.
20, 2018) (citing Zaklit v. Glob. Linguist Sols.,
LLC, No. CV 13-08654 MMM (MANx), 2014 WL 12521725, at
*10 n.74 (C.D. Cal. Mar. 24, 2014)). In their stipulation to
transfer venue, the parties apparently rely upon the consent
clause that Congress added to 28 U.S.C. § 1404(a) in
2011. (See generally Stip.)
2011, changes to 28 U.S.C. § 1404(a) that allowed
transfer “to any district or division to which all
parties have consented” abrogated prior decisions which
required personal jurisdiction over the defendants regardless
of whether the parties consented to the transferee forum.
Fesniak v. Equifax Mortg. Servs. LLC, No. CV 14-3728
(NLH/KMW), 2015 WL 9462087, at *4, n.2 (D.N.J. Dec. 28,
2015); see Guzzetti v. Citrix Online Holdings GmbH,
No. 12-1152, 2013 WL 124127, at *3 n.2 (D. Del. Jan. 3, 2013)
(stating that, after the 2011 amendment of 28 U.S.C. §
1404(a), “no longer is personal jurisdiction over the
defendant required where all parties consent to the
transferee forum”); see also Metz v. U.S. Life Ins.
Co. in City of New York, 674 F.Supp.2d 1141, 1145 (C.D.
Cal. 2009) (stating that for a case to be transferred under
28 U.S.C. § 1404(a) prior to the 2011 amendment, the
defendant must demonstrate “that subject matter
jurisdiction, personal jurisdiction, and venue would have
been proper . . . in the district to which transfer is
sought” (citing Hoffman v. Blaski, 363 U.S.
335, 343-44 (1960))). Here, however, Defendants have not
consented to personal jurisdiction in the proposed transferee
forum. (See Stip. at 1.) Indeed, they have expressly
not waived “objections to lack of personal
jurisdiction.” (See id.) Thus, the court
concludes that, although Defendants may have stipulated to
the transfer of this matter to the Southern District of New
York, they have not “consented” to that
“district” as required under the 2011 amendment
to 28 U.S.C. § 1404(a). See 28 U.S.C. §
1404(a) (stating that transfer is permitted “to any
district or division to which all parties have consented,
” among other requirements).
addition, the parties fail to provide the court sufficient
information to grant their stipulation. The question of
whether to transfer venue traditionally involves a
two-pronged inquiry: (1) whether the district where the
parties seek to transfer an action is one where the case
might have been brought, and (2) whether the transfer serves
the convenience of the parties and witnesses and the
interests of justice, which in turn requires the court to
consider a number of private and public factors. See
Luchini v. CarMax, Inc., No. 1:12CV0417 LJO DLB, 2012 WL
2401530, at *3 (E.D. Cal. June 25, 2012); see also Decker
Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843
(9th Cir. 1986), superseded by statute on other grounds
by 28 U.S.C. § 1391 (ruling that “a district
court can consider private and public factors affecting the
convenience of the forum”).
noted above, the 2011 amendment to 28 U.S.C. § 1404(a)
permits a district court to transfer a civil action not only
to a venue where the action could have been originally
brought by the plaintiff, but also to a venue to which all
the parties have consented or stipulated. See
Fesniak, 2015 WL 9462087, at *4, n.2 The question of
whether to transfer venue, however, remains a two-pronged
inquiry. See Microspherix LLC v. Biocompatibles,
Inc., No. 9:11-cv-80813-KMM, 2012 WL 243764, at *2 n.2
(S.D. Fla. Jan 25, 2012). Thus, the alternative forum first
must be one in which the action could have originally been
brought by the plaintiff or one to which all the
parties have consented. Id. Second, the court must
still assess whether the transfer serves the convenience of
the parties and witnesses and is in the interest of justice.
See Id. (stating that even after the 2011 amendment,
“[t]he second prong still requires [c]ourts to balance
private and public factors to determine whether or not
transfer is justified”). Here, the parties'
stipulation provides the court with no information on which
the court could assess the second prong for transfer under 28
U.S.C. § 1404(a). (See generally Stip.) Thus,
the court declines to transfer this matter unless the parties
demonstrate that the second prong of 28 U.S.C. §
1404(a)-that transfer serves “the convenience of
parties and witnesses” and is “in the interest of
Defendants have failed to consent to personal jurisdiction in
the Southern District of New York and because the parties
have failed to provide the court with sufficient information
to assess whether transfer would serve “the convenience
of parties and witnesses” and be “in the interest
of justice, ” the court DENIES the parties'
stipulation to transfer this matter to the Southern District
of New York ...